Abuse of Discretion: Court Should Have Banned Harasser from Store - U.S. Second Circuit
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Abuse of Discretion: Court Should Have Banned Harasser from Store

The most common form of redress for sexual harassment is a check. But what about injunctive relief? Should a court order a business to keep a harasser away from employees?

The Second Circuit Court of Appeals recently concluded that, in the face of egregious acts of sexual harassment perpetuated by a single employee, a district court abused its discretion when it declined to order injunctive relief to ensure that that harasser was no longer in a position to continue his offensive conduct.

KarenKim, Inc., (which operated Paul's Big M Grocery in Oswego, New York) is owned and managed by Karen Connors. In January 2001, KarenKim hired Allen Manwaring as a Store Manager. Within months, Manwaring and Connors became "romantically involved." They have been engaged since 2006 and have a young son together.

The situation gets awkward because a number of current and former KarenKim employees testified at trial that Manwaring repeatedly subjected them to both verbal and physical sexual harassment.

The verbal harassment consisted mainly of sexual comments, questions, and innuendos. The physical harassment included inappropriate brushing, touching, and Manwaring sticking his tongue in a teenaged employee's mouth.

(Manwaring pleaded guilty to second degree harassment, but testified that "in [his] heart [he] always felt it was an accidental joking incident." Connors stated that she did not believe Manwaring had done anything wrong, and accepted his explanation that he had "f[allen] into" the employee.)

Various employees complained to Connors about Manwaring's behavior; according to court records, Connors' reactions varied between crying and disbelief, though she eventually fired Manwaring. Manwaring, however, continued to drop by the store, both as Connors' companion and a produce contractor for KarenKim.

After a trial prompted by an Equal Employment Opportunity Commission (EEOC) complaint, a jury found that KarenKim, Inc. had subjected a class of female employees to a sexually hostile work environment and sexually harassed certain employees in violation of Title VII and New York State law. The jury awarded both compensatory and punitive damages.

The EEOC asked the court to also bar Manwaring from entering or working at the store, and distribute copies of a notice (with Manwaring's photograph) stating that Manwaring wasn't allowed to enter the building. The court declined to issue the injunction, describing the EEOC's requested measures as "unnecessary and overly burdensome."

The Second Circuit disagreed, concluding that the district court exceeded the scope of its discretion in declining to order that KarenKim is prohibited from directly employing Manwaring in the future, and that KarenKim is prohibited from permitting Manwaring to enter its premises.

Specifically, the appellate court noted that Connors' past refusal to adequately respond to multiple credible complaints about Manwaring's conduct suggests that, so long as Manwaring remains in a relationship with Connors, KarenKim will not take adequate remedial measures in response to any future harassment from Manwaring.

Let this be a lesson: Even when a district court doesn't want to ban handsy harassers from business premises, the Second Circuit will step in to stop the insanity.

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